On March 3, 2017, a bill that would require medical malpractice claims to be reviewed by expert advisory panels before proceeding to court won final passage in the Kentucky Senate, two days after it narrowly passed in the House of Representatives. The bill will now be sent to Gov. Matt Bevin.
The proposed law would require plaintiffs to submit medical malpractice claims for review to an advisory panel that would review the case and determine whether it has merit or is frivolous before issuing a nonbinding opinion as to whether the case should proceed.
Supporters say the three-member panels would help flush out frivolous medical malpractice lawsuits that drive up the cost of malpractice insurance, and overburden the court system. Opponents of the bill voiced concerns about the constitutionality of denying the right to a trial by jury, or delaying access to courts.
In passing the bill, the House added two changes, which were approved by the Senate. Those changes include requiring review panels to issue opinions in nine months, as opposed to six months in the original bill. Also, under the final version, trial judges would decide on the admissibility of the panel’s opinions instead of allowing those opinions to automatically be admitted into court as evidence. The bill’s supporters said the changes made by the House addressed constitutionality concerns.
Rep. Chad McCoy, a personal injury plaintiffs’ attorney, urged his colleagues to vote against the bill. He advocated implementing instead an expert opinion requirement, known as an affidavit or certificate of merit, in which a licensed professional attests that the case has merit and is not frivolous. New Jersey and Pennsylvania do not have medical review panels but do have statutes requiring affidavits or certificates of merit in medical malpractice lawsuits.
Individuals who are injured due to medical malpractice are still entitled to have their meritorious claims adjudicated in court. Medical liability reform measures are intended to impact only those claims that have no merit and are frivolous.